MARINE MAMMAL COMMISSION — Annual Report for 1991 



Fisheries Cooperative Association authorizing the take 

 of Dall's porpoises {Phocoenoides dalli) in the Japa- 

 nese North Pacific salmon driftnet fishery. Issuance 

 of the permit was challenged in a lawsuit filed by the 

 Kokechik Fishermen's Association, representing 

 Alaska subsistence fishermen, and several environ- 

 mental groups. As a result of that litigation, Kokechik 

 Fishermen's Association v. Secretary of Commerce, 

 the permit was invalidated. The Court ruled that 

 issuance of the single-species permit violated the 

 Marine Mammal Protection Act because other species 

 {e.g.. North Pacific fur seals) not covered by the 

 permit would inevitably be caught if the Japanese 

 were allowed to fish as authorized by the permit. 



The Court's decision overturned a longstanding 

 National Marine Fisheries Service interpretation of the 

 Marine Mammal Protection Act permit provisions and 

 cast serious doubt on the Service's ability to issue 

 incidental -take permits for other fisheries, including 

 several domestic fisheries whose permits were to 

 expire at the end of 1988. For some fisheries, there 

 was insufficient information to determine which 

 marine mammal species were likely to be incidentally 

 taken. In other cases, it appeared likely that there 

 were insufficient data to make the required showing 

 that the affected marine mammal species and popula- 

 tion stocks were within their optimum sustainable 

 population range and would not be disadvantaged 

 {i.e., be reduced below their maximum net productivi- 

 ty level) as a result of the incidental taking. In 

 addition, small numbers of depleted species, for which 

 incidental-take permits could not be issued, were 

 known to be taken incidental to some fisheries. 



1988 Amendments to the 

 Marine Mammal Protection Act 



In response to uncertainties raised by the Kokechik 

 decision, representatives of the fishing industry and 

 environmental community jointly proposed that 

 Congress enact a three-year exemption to the provi- 

 sions of the Marine Mammal Protection Act to allow 

 the take of marine mammals incidental to certain 

 commercial fisheries. Based largely on that proposal, 

 the Marine Mammal Protection Act was amended in 

 1988 to provide a limited five-year exemption from 

 the Act's taking prohibition for most commercial 



fisheries. During the exemption period, which runs 

 until 1 October 1993, the general permit and small- 

 take provisions of the Act do not govern the incidental 

 taking of marine mammals in the course of commer- 

 cial fishing operations by domestic fishermen or by 

 foreign fishermen fishing pursuant to valid permits 

 issued under section 204 of the Magnuson Fishery 

 Conservation and Management Act. Rather, the 

 incidental take is authorized and regulated in accor- 

 dance with the exemption provisions of new section 

 1 14. Foreign fisheries not regulated under the Mag- 

 nuson Act, such as the Japanese high seas salmon 

 fishery at issue in the Kokechik case, were not includ- 

 ed in the exemption. An exception was also made for 

 the yellowfin tuna purse seine fishery, which contin- 

 ues to operate under its present general permit. The 

 goal of the exemption program is to enable commer- 

 cial fisheries to continue to operate while information 

 essential for long-term management of marine mam- 

 mal-fishery interactions is developed. 



Under the exemption provisions, owners of vessels 

 operating in fisheries identified by the National 

 Marine Fisheries Service as frequently or occasionally 

 taking marine mammals must register with the Service 

 and obtain an exemption certificate in order to engage 

 lawfully in those fisheries. Vessel owners, masters, 

 and crew members are not subject to penalties under 

 the Marine Mammal Protection Act for the incidental 

 take of marine mammals, except for the take of 

 California sea otters or the intentional lethal take of 

 Steller sea lions, cetaceans, or marine mammals from 

 depleted populations, if the owners maintain a current 

 exemption. Unauthorized taking of endangered or 

 threatened marine mammals continues to be a viola- 

 tion of the Endangered Species Act. In addition, if 

 the incidental taking is having an immediate and 

 significant adverse impact on a marine mammal stock 

 or if more than 1,350 Steller sea lions or 50 North 

 Pacific fur seals will be killed during a calendar year, 

 the Service, in consultation with the appropriate 

 regional fishery management councils and state 

 agencies, must prescribe emergency regulations to 

 prevent, to the extent practicable, any further taking. 



In order for an exemption to remain valid, the 

 vessel owner must submit a report detailing any 

 instances of incidental taking and providing other 

 information prescribed by the National Marine Fisher- 



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